BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BEHR ALUMINUM, INC., an Illinois
Corporation,
Respondent.
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PCB No. 2009 - 014
(Enforcement - Air)
NOTICE OF FILING
(VIA ELECTRONIC FILING)
TO:
See attached service list
PLEASE TAKE NOTICE that today, September 5, 2008, I have electronically
filed with the Office
of the Clerk of the Pollution Control Board a Motion to Request
Relief from Hearing, and a Stipulation and Proposal for Settlement as to Respondent
Behr Aluminum, Inc., a copy
of which is attached and hereby served upon you.
Respectfully submitted,
BY:
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney General
of the State of Illinois
~{/;cM..e
RREN NICHOLE C
Assistant Attorney Gene
Environmental Bureau
69
W. Washington St., 18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
SERVICE LIST
Mr. Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
Jon
S. Fa1etto
Hinshaw
&
Culbertson LLP
416 Main Street - 6th Floor
Peoria, IL 61602
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BEHR ALUMINUM, INC., an Illinois
Corporation,
Respondent.
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PCB No. 2009 - 014
(Enforcement - Air)
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois, and requests relief from. the
hearing requirement in the above-captioned matter. In support thereof, the Complainant
states as follows:
1.
On September 5, 2008, the Complaint was accepted for hearing by the
Pollution Control Board ("Board") in this matter.
On September 5, 2008, a Stipulation
and Proposal for Settlement with Respondent Behr Aluminum, Inc. was filed with the
Board.
If accepted, the Stipulation and Proposal for Settlement will dispose of the case.
2.
Section 31(c)(2)
of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2006), allows the parties in certain enforcement cases to request
relief
from the mandatory hearing requirement where the parties have submitted to the Board a
stipulation and proposal for settlement. Section 31 (c)(2) provides:
Notwithstanding the provisions
of subdivision (1) of this subsection (c), whenever
a complaint has been filed on
behalf of the Agency or by the People of the State
of Illinois, the parties may file with the Board a stipulation and proposal for
settlement accompanied
by a request for relief from the requirement of a hearing
pursuant to subdivision (1). Unless the Board, in its discretion, concludes that a
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
hearing will be held, the Board shall cause notice of the stipulation, proposal and
request for reliefto be published and sent in the same manner as is required for
hearing pursuant to subdivision (1) of this subsection. The notice shall include a
statement that any person may file a written demand for hearing within
21 days
after receiving the notice.
If any person files a timely written demand for hearing,
the Board shall deny the request for relief from a hearing and shall hold a hearing
in accordance with the provisions of subdivision (1).
3.
No hearing is currently scheduled in the instant case.
4.
Both parties agree that a hearing on the Stipulation and Proposal for
Settlement is not necessary, and respectfully request relief from such hearing as allowed
by Section 31 (c)(2) ofthe Act, 415 ILCS 5/31 (c)(2) (2006).
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by
LISA MADIGAN, Attorney General of the State of Illinois, respectfully requests that the
Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(I)
of the Act, 415 ILCS 5/31(c)(I) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois
BY:
2
Electronic Filing - Received, Clerk's Office, September 5, 2008
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BEHR ALUMINUM, INC., an Illinois
Corporation,
Respondent.
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PCB No. 2009 - 014
(Enforcement - Air)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
ofthe State ofIllinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
BEHR ALUMINUM, INC. ("Respondent"), have agreed to the making of this Stipulation and
Proposal for Settlement ("Stipulation") and submit it to the Illinois Pollution Control Board
("Board") for approval. This stipulation
offacts is made and agreed upon for purposes ofsettlement
only and as a factual basis for the Board'sapproval
ofthis Stipulation and issuance ofrelief. None of
the facts stipulated herein shall be introduced into evidence in any other proceeding regarding the
alleged violations
ofthe Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1
et seq.
(2006),
and the Board's Regulations alleged in the Complaint.
It
is the intent of the parties to this
Stipulation that it
be a final adjudication of this matter.
Electronic Filing - Received, Clerk's Office, September 5, 2008
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I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On September 5, 2008, a Complaint was filed on behalf of the PEOPLE OF THE
STATE OF ILLINOIS
by Lisa Madigan, Attorney General ofthe State ofIllinois, on her own motion
and upon the request
of the Illinois EPA, pursuant to Section 31 ofthe Act, 415 ILCS 5/31 (2006),
against the Respondent.
2.
The Illinois
EPA is an administrative agency ofthe State ofIllinois, created pursuant
to Section 4
of the Act, 415 ILCS 5/4 (2006).
3.
At all times relevarit to the Complaint, Respondent BEHR ALUMINUM, INC., was
an Illinois corporation authorized to transact business in the State
ofIllinois. At all times relevant to
the Complaint, Respondent owned and operated a secondary aluminum smelting facility located at
1100 Seminary Drive, Rockford, Winnebago County, Illinois ("Facility").
B.
Allegations of Non-Compliance
. In the Complaint, Complainant and the Illinois EPA alleged that the Respondent violated the
following provisions
ofthe Act and Board Regulations:
Count
I:
Count II:
Count
ill:
AIR POLLUTION in violation of Section 9(a) of the Act and
Sections 201.141 and 212.321
of the Board's Air Pollution
Regulations
DISCHARGE OF CONTAMINANTS in violation ofSection 9(b)
of the Act, Special Condition 2(a) of Respondent'sSeptember 2001
Lifetime Operating Permit and Special Condition 3(a)
of
Respondent's
August
2002
Lifetime
Operating
Permit
FAILURE TO TIMELY CONDUCT EMISSIONS TESTING in
violation
of Section 9(b) of the Act, Special Condition 5(a) of
Respondent'sSeptember 2001 Lifetime Operating Permit and Special
Condition 6(a)
of Respondent's August 2002 Lifetime Operating
Permit
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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Count IV:
FAILURE
TO
UTILIZE
POLLUTION
CONTROL
EQUIPMENT
in violation of Section 9(b) of the Act, Special
Condition 2(b)
ofRespondent's September 2001 Lifetime Operating
Permit, and Special Condition 3(b) of Respondent's August 2002
Lifetime Operating Permit
Count
V:
FAILURE TO OBTAIN CONSTRUCTION PERMIT
in violation
of Section 9(b) of the Actand Section 201.142 of the Board's Air
Pollution Regulations
Count VI:
FAILURE TO MAINTAIN RECORDS
in violation ofSection 9(b)
of the Act, Special Conditions 9(a), (c) and (g) of Respondent's
September 2001 Lifetime Operating Permit, and Special Conditions
10(a), (c) and (g)
of Respondent's August 2002 Lifetime Operating
Permit
Count VII:
FAILURE TO TIMELY DEMONSTRATE COMPLIANCE
WITH THE NESHAP
in violation of Section 9.1(d)(I) of the Act
and Sections 63.1511(a) and (b) and 63.1501(a)
ofthe NESHAP for
secondary aluminum production
Count Vill:
FAILURE TO TIMELY SUBMIT NOTICE OF COMPLIANCE
WItH THE NESHAP
in violation of Section 9.1(d)(I) of the Act
and Section 63.1515(b) of the NESHAP for secondary aluminum
production
Count
IX:
FAILURE TO COMPLY WITH PSD REQUIREMENTS
in
violation ofSections 9.1(d)(I) and (2) ofthe Act, Sections 165(a)(l)
and (4)
ofthe federal Clean Air Act, and Sections 52.21(a)and
(j)
of
the federal PSD Regulations
Count
X:
FAILURE TO OBTAIN CAAPP PERMIT
in violation ofSection
39.5(6)(b)
of the Act
C.
Non-Admission of Violations
The Respondent represents that it has entered into this Stipulation solely for the purpose of
settling and compromising disputed claims without having to incur the time, effort, and expense of
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
contested litigation. By entering into this Stipulation and complying with its terms, the Respondent
does not admit the allegations
of violation within the Complaint and referenced within Section LB
herein and this Stipulation shall not be interpreted as including such admission.
D.
Compliance Activities to Date
In
September 2004, Respondent conducted stack testing at the Facility.
In
August 2007, Behr
Aluminum ceased all operations at the Facility.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA and
the Respondent, and any officer, director, agent, or employee
of the Respondent, as well as any
successors or assigns
of the Respondent. The Respondent shall not raise as a defense to any
enforcement action taken pursuant to this Stipulation the failure
of any of its officers, directors,
agents, employees or successors or assigns to take such action as shall be required to comply with the
provisions
of this Stipulation.
III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) ofthe Act, 415 ILCS 5/33(c)(2006), provides as follows:
In
making its orders and determinations, the Board shall take into consideration all
the facts and circumstances bearing upon the reasonableness
of the emissions,
discharges, or deposits involved including, but not limited to:
1.
the character and degree ofinjury to, or interference with the protection ofthe
health, general welfare and physical property of the people;
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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2.
the social and economic value of the pollution source;
3.
the suitability or unsuitability ofthe pollution source to the area in which it is
located, including the question of priority of location in the area involved;
4.
the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such
pollution source; and
5.
any subsequent compliance.
In
response to these factors, the parties to this Stipulation state the following:
1..
Complainant asserts that human health and the environment were threatened and the
Illinois EPA's information gathering responsibilities were hindered by the Respondent's alleged
violations.
2.
There was social and economic benefit to the Facility while it was in operation;
however, Respondent made a business decision to close the Facility in August 2007.
3.
Operation of the Facility was suitable for the area in which it was located.
4.
Compliance with federal and State permit requirements, federal and state emissions
limitations and requirements, performance testing and notification requirements prescribed by the
NESHAP for secondary aluminum production, recordkeeping requirements prescribed by permit
conditions and Board regulations, and the installation and operation
of best available control
technology consistent with prevention of significant deterioration ("PSD") requirements are all
technically practicable and economically reasonable.
5.
Respondent subsequently complied with the Act and the Board Regulations, by
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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conducting required stack testing at the Facility in September 2004 and, in August 2007, terminating
operation
of its emissions sources and air pollution control equipment that were the subject of
Complainant'scomplaint.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2006), provides as follows:
In determining the appropriate civil penalty to
be imposed under ... this Section, the
Board is authorized to consider any matters
ofrecord in mitigation or aggravation of
penalty, including but not limited to the following factors:
1.
the duration and gravity of the violation;
2.
the presence
or absence of due diligence on the part of the respondent in
attempting to comply with requirements
of this Act and regulations
thereunder
or to secure relief therefrom as provided by this Act;
3.
any economic benefits accrued by the respondent because of delay in
compliance with requirements, in which case the economic benefits shall be
determined
by the lowest cost alternative for achieving compliance;
4.
the amount of monetary penalty which will serve to deter further violations
by the respondent and to otherwise aid in enhancing voluntary compliance
with this Act
by the respondent and other persons similarly subject to the Act;
5.
the number, proximity in time, and gravity of previously adjudicated
violations
of this Act by the respondent;
6.
whether the respondent voluntarily self-disclosed, in accordance with
subsection (i)
of this Section, the non-compliance to the Agency; and
7.
whether the respondent has agreed to undertake a Asupplemental
environmental project,@ which means an environmentally beneficial project
that a respondent agrees to undertake in settlement
of an enforcement action
brought under this Act, but which the respondent is not otherwise legally
6
Electronic Filing - Received, Clerk's Office, September 5, 2008
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required to perform.
In
response to these factors, the parties to this Stipulation state as follows:
1.
Complainant asserts that the alleged violations at Respondent'sFacility began on or
around September 2001, when Respondent modified its Facility without first obtaining a PSD
construction permit from the Illinois EPA. The alleged violations have been resolved at various
times since September 2001.
2.
Since 2005, Respondent has acted diligently in attempting to achieve and maintain
compliance with the Act, Board regulations and applicable federal regulations.
3.
Complainant asserts that Respondent received an economic benefit from its failure to
comply with the Clean Air Act, the Act and State and Federal Air Pollution Regulations, including
avoiding installation
of best available control technology required to bring the Facility into
compliance with
PSD regulations. However, the civil penalty obtained in the settlement of this
matter exceeds any economic benefit
of noncompliance received by Respondent. Furthermore,
Respondent has ceased operation
of the Facility.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts
of
this matter, that a penalty of One Hundred and Forty Thousand Dollars ($140,000.00) will serve to
deter further violations and aid in future voluntary compliance with the Act and Board Regulations.
5.
The Complainant and the Illinois EPA are unaware of any previously adjudicated
violations
ofthe Act by Respondent.
6.
Self-disclosure is not at issue in this matter.
7.
Respondent has agreed to fund a supplemental environmental project in the amount of
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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One Hundred Thousand Dollars ($100,000.00), which will result in reduced emissions generated
during diesel engine operations in the State
of Illinois, as described in Section V.B herein.
v. TERMS OF SETTLEMENT
A.
Civil Penalty Payment
1.
The Respondent shall pay a civil penalty ofOne Hundred and Forty Thousand Dollars
($140,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
2.
The civil penalty payment required by this Stipulation shall be made by certified
check or money order payable to the Illinois EPA for deposit into the Environmental Protection Trust
Fund. Payments shall be sent by first class mail and delivered to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
3.
The name, case number and the Respondent'sfederal tax identification number shall
appear on the face
of the certified check or money order. A copy of the certified check or money
order and any transmittal letter shall be sent to:
L.
Nichole Cunningham
Environmental Bureau
Illinois Attorney General's Office
69 West Washington St., Suite 1800
Chicago, Illinois 60602
B.
Supplemental Environmental Project
1.
In
order to promote the goals ofthe Act to restore, protect and enhance the quality of
8
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
the environment, the Respondent shall perform a supplemental environmental project ("SEP"). The
settlement value
of the SEP is One Hundred Thousand Dollars ($100,000.00) and will offset
penalties sought
by the Complainant and the Illinois EPA in this matter. The parties to this
Stipulation agree that this SEP shall consist
of the following:
2.
The Respondent shall pay the amount of One Hundred Thousand Dollars
($100,000.00) within thirty (30) days after the date
of entry of this Stipulation to the Illinois EPA
Special State Projects Trust Fund, to be used for the reduction ofdiesel emission pollution in Illinois.
3.
The payment shall be paid by certified check or money order made payable to the
Illinois EPA Special State Proj
eCts Trust Fund. The certified check or money order shall be sent by
first class mail to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
4.
The name, case number and the Respondent'sfederal tax identification number shall
appear on the face
of the certified check or money order. A copy of the certified check or money
order and any transmittal letter shall be sent to:
L.
Nichole Cunningham
Environmental Bureau
Illinois Attorney General's Office
69 West Washington St., Suite 1800
Chicago, Illinois 60602
5.
The SEP payment, required by Section V.R2 above, shall be administered by Illinois
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
EPA to further diesel emission reduction from existing diesel engines. The Illinois EPA'ssponsored
program to fund diesel emission reduction activities shall target various diesel engine groups,
including heavy duty trucks, marine engines, locomotives, non-road engines and school
or transit
buses. The Illinois
EPA may grant SEP funding for various emission reduction activities, including
engine retrofitting, idle reduction, engine upgrades, vehicle
or equipment replacements with clean
fuel alternatives, and clean fuel usage.
6.
By signature on this Stipulation, the Respondent certifies that, as ofthe date ofentry
ofthis Stipulation, it is not required to perform or develop the foregoing SEP by any federal, state or
local law or regulation, nor is it required to perform or develop the SEP by agreement or injunctive
reliefin any other case. The Respondent further certifies that it has not received, and is not presently
negotiating to receive credit for, the SEP in any other enforcement action.
7.
Any public statement, oral
or written, in print, film or other media, made by the
Respondent making reference to any SEP shall include the following language: "This project was
undertaken in connection with the settlement
ofan enforcement action taken by the Illinois Attorney
General and the Illinois EPA for alleged violations
ofthe Illinois Environmental ProtectionAct and
regulations promulgated thereunder."
C.
Release from Liability
In consideration ofthe Respondent'spayment ofa One Hundred and Forty Thousand Dollar
($140,000.00) civil penalty and completion
ofaOne Hundred Thousand Dollar ($100,000.00) SEP,
the Complainant releases, waives and discharges the Respondent from any further liability
or
penalties for the violations of the Act and Board Regulations that were the subject matter of the
10
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
Complaint. The release set forth above does not extend to any matters other than those expressly
specified in Complainant'sComplaint filed on September 5,2008. The Complainant reserves, and
this Stipulation is without prejudice to, all rights
ofthe State ofIllinois against the Respondent with
respect to all other matters, including but not limited to, the following:
a.
criminal liability;
b.
liability for future violations;
c.
liability for natural resources damage arising out of the alleged violations; and
d.
the Respondent's failure to satisfy the requirements of this Stipulation.
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to sue for any
claim or cause
of action, administrative or judicial, civil or criminal, past or future, in law or in
equity, which the State
of Illinois or the Illinois EPA may have against any person, as defined by
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), other than the Respondent.
D.
Execution of Stipulation
The undersigned representatives for each party to this Stipulation certify that they are fully
authorized
by the party whom they represent to enter into the terms and conditions ofthis Stipulation
and to legally bind them to it.
11
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
WHEREFORE, the parties to this Stipulation request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
DATE:~_r~!~~..:....:....1-1-lo_g
_
BEHR ALUMINUM, INC.
BY:
Name:
-----------
Title:
-----------
12
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P.
SCqTT, Director
Illinois Environmental Protection Agency
DATE:
_-I'~
DATE:.
_
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
WHEREFORE, the parties to this Stipulation request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
DATE:,
_
BEHR ALUMINUM, INC.
BY:~R.~~
Name:
L.e.-l~"
d
j~.
p.{j
~(.,I<..~
" Cj
Title: -("v
~
u-J
v
v
t..-Ir
12
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
_
ROBERT
A.
MESSINA
Chief Legal Counsel
DATE:
_
DATE:
5,,)f'
.-
r
3
.
I
:L
0
e
~
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
CERTIFICATE OF SERVICE
I, Lorren Nichole Cunningham, Assistant Attorney General, do certify that on the
5
th
day of September, 2008, I caused to be served upon Respondent Behr Aluminum, Inc.
the foregoing Motion to Request Relief from Hearing, Stipulation and Proposal for
Settlement and Notice
of Filing by depositing the same at the United States Postal
Service facility located at 100 W. Randolph, Chicago, Illinois.
L
VIIMRREN
11
NICHOLE
jut,.
t
C
Assistant Attorney Gener
Environmental Bureau
69
W. Washington St., 18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
